Drones and Privacy – Your Rights

Drones and privacy

As a busy commercial drone operator, I am often asked about peoples’ right to privacy when drones are flying around them, and it is even, on occasion, suggested that I am invading someone’s privacy by flying a drone near them. So I’d like to clarify your right to privacy in relation to drone operators.

First of all, let me explain the distinctions between three classes of drone operator as these will have a direct impact both on the potential to invade your privacy and on the recourse you may have to do something about drones and privacy.

The first class of operator, which includes Queensland Drones, is called a CASA-Certified operator. This means the business operating the drone has been assessed by the Australian airspace regulator, CASA, to have policies and procedures in place to protect the safety of people in their operations and can only employ drone operators who have been licenced and tested by CASA on the class and type of drone being operated. These operators must also carry public liability insurance, which offers some level of compensation if you are injured or your property is damaged during a drone operation.

The second class of operator is called an Excluded Category operator. This means the operator has notified CASA that they want to conduct commercial drone operations in a specific area using a very small drone (under 2 kg weight) and within specific flight rules. These operators require no licencing or assessment and are not required to carry public liability insurance. That’s not to say they don’t, as I operated for a time under this class with a CASA UAV pilot’s licence and with insurance, but I was definitely in the minority. There is also an excluded category for farmers operating drones on their own properties, up to 25 kg in weight.

The third class of operator is what is commonly called the drone hobbyist. These operators are typically non-commercial (not charging for what they do), untrained and uninsured (although they may have limited insurance through membership of a club). These operators require no training, no licensing and are largely unregulated. CASA has the power to regulate them, but not the resources to enforce that power.

There are no specific laws which relate to drones and privacy, but regulated operators have legal requirements not to fly on or over private property without the owner’s consent and not to fly over populated areas except with very detailed risk management procedures. In most cases, for example, it is illegal to fly a drone within 30m of a person without explicit permission.

In 2013, the Australian Privacy Commissioner (Timothy Pilgrim) wrote to the Attorney-General of Australia (Mark Dreyfus QC) asking about the potential privacy impacts of drones. The Attorney-General offered the view that the Privacy Act 1988 does not apply to individuals (it is intended for government and large businesses), which means operators in the second and third classes above are not covered by privacy legislation. He did, however, mention that state legislation against stalking and harassment may apply to drone surveillance in some situations.

The Federal Parliament held an inquiry into drone safety and privacy in 2014 and concluded that current laws relating to privacy from drones were “fractured” and do not “provide overarching privacy protection for the individual”. This enquiry noted that “small businesses (with an annual turnover of less than $3 million), political organisations, media organisations, and
individual citizens acting in the course of their personal, family or household affairs are not subject to the privacy principles.”

So it appears that privacy legislation offers little protection against what we might call inadvertent intrusions of privacy by drone operators, even those employed by small businesses (most drone operators are small businesses). By inadvertent intrusions, I mean where the operator is filming something else and you happen to be in those images, much like what may happen when you’re at the beach and a bus load of Chinese tourists arrive.

The parliamentary enquiry did note that state and territory governments often have laws relating to the use of “surveillance devices” but these are inconsistent and not specifically applicable to drones. They may apply if a drone is being intentionally used to photograph you or your family without your permission. Other state laws may apply if these images were to include you or your children, for example, sunbathing in your back yard. If this happens repeatedly, state harassment laws may also apply.

The laws of trespass may also apply to drone use in some circumstances. This is an area where there are varying legal opinions, but it is likely that a drone operator could be accused of committing an act of trespass if they repeatedly and intentionally fly over your property without your permission, especially at low altitudes. Trespass action would be more likely to be considered if the drone was attempting to film through your windows or hovering above your house.

CASA has little power to act on alleged breaches of privacy or even allegations of trespass, unless the drone actually injures someone or causes property damage. However if you feel that a drone operator is invading your privacy or trespassing on your property, you can collect evidence (it would need to identify the operator and what they were doing) and provide it to CASA for investigation.

Anecdotal experience indicates that police often feel they have little ability or scope to take action against allegations of breach of privacy by drone operators unless these actions clearly break other laws (e.g. harassment or trespass). In most cases it is also very difficult to clearly identify the offender as they can often be a long way from the drone.

The good news in respect of privacy is that drone cameras are not that great. They are wonderful for capturing large scale scenes, but unless they are quite close to you it is unlikely you would be clearly identifiable in the images. If the drone is close enough to capture you in detail, you should hear and see it.

Further good news is that commercial drone operators like Queensland Drones (those in the first category above) has an obligation in their job safety assessment processes to take reasonable steps to avoid breaches of privacy. This usually means not deliberately pointing the camera towards people unless they are part of the scene needing to be captured.

But in the end, it’s fair to say that general drone operators are not the biggest risk to your privacy. The sort of person who would use a drone to film through your window or to check if you are at home is likely to be the same kind of person who would do the same kind of thing with a zoom lens on a normal camera. And there are new types of drone operators who will have your privacy right in their sights in the near future – police, private investigators, debt collectors, insurance assessors and many more yet to come.

Drone technology is no better or worse than many other technologies when it comes to the potential to breach your privacy. Where I live, I have light aircraft and helicopters flying over my house almost every day at 200-300 feet above the roof and I have no idea if they are equipped with cameras and big zoom lenses. High-resolution satellite imagery is now so good that intelligence agencies can probably tell what brand of beer you’re drinking at your backyard BBQ. And just in case that’s not enough, almost everywhere you go now there are fixed surveillance cameras recording you from light posts, from the sides of buildings and almost anywhere else you care to look.

Privacy laws simply cannot keep up with the advances in imaging technology. Drones are just a small part of the challenge facing our legislators … they just happen to be a visible part.

Note that I am not a lawyer. If you want a legal opinion, please consult a lawyer. The opinion above is that of a commercial drone operator who reads others’ legal opinions a lot.